73 N.Y.S. 324 | N.Y. App. Div. | 1901
The plaintiff’s intestate was on the nth of February, 1899, crossing the track of the defendant railway, about 8 o’clock in the evening, when he was -struck by one of the defendant’s cars, and sustained injuries which resulted in his death. The night was very cold, and there is evidence that at the time of the accident it was snowing. The car that struck the plaintiff’s intestate was a south-bound car, upon the west track. The plaintiff’s intestate attempted to cross the street from the west to the east, and as he stepped upon the track the car struck him. The plaintiff called as witnesses two policemen who were standing upon the northwest corner of Ninety-Second street and Fexington avenue. Officer Nevins testified on direct examination that he saw the plaintiff’s intestate walking down on the southerly side of Ninety-Second street from Park avenue to the east; that he walked on the crossing; saw the car strike and knock the deceased down. The witness says:
“I noticed as he stepped on the track. At that time I did not exactly notice how far away the car was. The car might have been about in front of us. -We were on the other side of the street. The front car was about even with the north cross walk. * * * I saw the car come along at the time I was standing there. I did not exactly see the man step on the track. I saw him coming down the street first. I saw the man step on the crossing next. Then he kind of paused. I did not take much notice to what he done, but he just about paused for to look around, like. The next thing, I see him go rolling in front of the car. At that time the front of the car was about even with this cross walk that is in front of us, across the street. I next saw'the man rolling in front of the car by looking around. I did not notice the gripman do anything until he tried to brake up his car from hearing the sound. He started to do that after he had struck the man. At the time that I saw the car right on the cross walk, or about the cross walk, I did not see the gripman do anything, only just from hearing the noise of the brake. This was a very cold night, and snowing.”
On cross-examination the witness testified that the car was brilliantly lighted; that he saw the plaintiff’s intestate pause on the curb at the gutter; that the car was then coming in full sight, so that a man with his eyes open, with ordinary eyesight, could not fail to see it at that time; that when he stepped from the sidewalk down to the street the car was about opposite the north crossing of Ninety-Second street; that before the plaintiff’s intestate had left the curbstone the car had about reached the northerly side of Ninety-Second street, opposite to where the witness was; that the distance from the curbstone to the westerly rail of the track on which the car was running was about 12 feet, and to reach the track the deceased had to walk that distance; in the meantime the car was coming in full sight; that when the deceased stepped upon the westerly rail of the westerly track, on which the south-bound car was coming, the car had got right onto him,—“It was right on top of him.” Upon redirect examination counsel for the plaintiff endeavored to get the witness to say that when the deceased stepped on the track the car was at the
The judgment and order appealed from must therefore be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.